Avoiding e-discovery pitfalls: Seminar helps attorneys with new model order

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 By Steve Thorpe

Legal News
 
The Federal Bar Association, in conjunction with the judges of the U.S. District Court of the Eastern District of Michigan, presented “The New E-discovery Model Order — a Roadmap for Efficiency and Avoiding Litigation Pitfall” on Tuesday, Jan. 14, at the Theodore Levin U.S. Courthouse in downtown Detroit.
 
The program was intended to be “a roadmap for efficiency and avoiding e-discovery model order pitfalls” and help attorneys practicing in U.S. District Court “avoid sanctions, spoliations, adverse inferences or dismissal.”
 
The “Model Order Relating to the Discovery of Electronically Stored Information” was recently approved by the court, as well as a comprehensive checklist to assist judges and practitioners in using the order. The model order deals with metadata, storage systems, retention obligations, advanced search techniques and proportionality issues.
 
The court may consider in future whether to adopt the materials “as a uniform practice for the Court.”
 
Two of the judicial officers who crafted the model order, Judge Robert Cleland and Magistrate Judge Michael Hluchianuk, were on the panel. E-discovery experts J. Stott Matthews and Mark St. Peter, as well as attorney presenters Daniel Quick, Kevin Fanning and Megan McKnight, rounded out the panel.
 
Hluchianuk described the origins of the effort as a growing realization that Electronically Stored Information (ESI) was becoming a huge discovery issue.
 
“It was clear to many of us that this was an area that was only going to get more complicated,” he said. “There was a general recognition that some framework and structure for the analysis of these crucial issues associated with electronically stored information.”
 
Cleland praised Hluchianuk’s role in the process and said that it wasn’t surprising that the impetus for the order came from the magistrate bench.
 
“As in many cases, the party whose ox is gored is the one who starts complaining, and that would be the magistrate court of the bench,” he said. “They were getting tasked with these seemingly impossible problems, these Gordian knots of complaint, counter-complaints and excuses about these complex discovery issues. Magistrate Judge Hluchianuk is the one who raised the issue to the bench and volunteered to head the committee.” 
 
The model order contains principles addressing issues including cooperation, proportionality, the duty to meet and confer, preservation, identifying electronically stored information (ESI),  and format of production. The checklist suggests topics to be discussed as the parties confer.
 
It also places specific limitations on electronic discovery obligations. Some categories of ESI are exempted from discovery, including “random access memory (RAM) or other ephemeral data,” “on-line access data such as temporary Internet files, history, cache, cookies, etc.” and “data in metadata fields that are frequently updated automatically, such as last-opened dates.” 
 
In the Principles section of the order, it states: “Understanding of the feasibility, reasonableness, costs, and benefits of various aspects of electronic discovery will inevitably evolve as judges, attorneys, and parties to litigation gain more experience with ESI and as technology advances.”
 
One of the other Principles of the order mandates the participation of an “E-discovery Liaison” to assist attorneys and the court in understanding the often arcane and complex issues technology can raise. Panelists strongly advised against attorneys trying to “wing it” with their personal knowledge.
 
In addition to the model order, a checklist was provided to help participants in electronic discovery walk through the process.
 
“It’s a very useful tool to insure that you’ve covered all the bases in terms of meeting your obligations,” Quick said.
 
One of the panelists warned attendees that the consequences of underestimating or neglecting ESI discovery can go far beyond embarrassment. 
 
“If you look at some of the most egregious sanctions cases that have come out over the last 10 years, there’s a theme that resonates through them,” said McKnight. “It’s that the people at the table who are discussing e-discovery issues have no clue what they’re talking about. The lawyers and business representatives, who had been in disputes for months, had no idea what was going on. There are cases across the country where lawyers have been severely sanctioned for representations to the court on e-discovery.”
 
A copy of the order and checklist can be viewed and downloaded at www.mied.uscourts.gov/News/Docs/EsiOrderChecklist.pdf.

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